Contingency in a Sacred Law: Legal and Ethical Norms in the Muslim Fiqh

Contingency in a Sacred Law: Legal and Ethical Norms in the Muslim Fiqh

Author:

Jonathan E. Brockopp

Year:

2001

Publication:

Journal of the American Oriental Society

Volume:

121

Issue:

1

Start Page:

108

End Page:

109

Publisher:

Language:

English

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Updated: July 5th, 2011

Abstract:

Reviewed work(s): Contingency in a Sacred Law: Legal and Ethical Norms in the Muslim Fiqh by Baber Johansen Contingency in a Sacred Law: Legal and Ethical Norms in the Muslim Fiqh. By BABER JOHANSEN. Studies in Islamic Law and Society, vol. 7. Leiden: BRILL, 1999. Pp. xiii 521. Nig. 246.00/US $144.50. Although largely a collection of previously published material, this volume provides a welcome opportunity to assess a significant portion of Johansen's scholarship as it has developed over time. An important seventy-page introduction is new, while the other fifteen articles appeared from 1977 to 1994. A few of these articles are taken from such well-known journals as Studia Islamica and Die Welt des Islams, but the majority were originally published in Festschriften and lesser-known journals. The variety of topics is indicative of Johansen's intellectual range, but all focus on the intersection between legal norms and social practice. Johansen has divided the book into thematic chapters, and the most successful of these (those on the Islamic city, and the question of Muslims living under non-Muslim rule) collect articles that are closely related to one another. It is particularly gratifying to see suggestions and ideas in one essay developed in following articles. Similarly, the introductory chapter provides a synthetic account of the religious role of Islamic law that helps put the other essays in perspective, particularly those that focus on terminology and process and not so much on social history. It is unfortunate that this introduction is marred by dozens of misspellings and minor grammatical errors that occasionally lead to incomprehensible sentences (as is the case on pp. 27-28). But these do not take away from the fact that this is one of the most important treatments of Islamic law since Schacht. After an interesting delineation between theological and legal spheres in Islam, Johansen carefully reconstructs the Weberian basis of Schacht's theories. He then levels a series of critiques, largely aimed at recovering the nature of Islamic law as a religious institution. By placing the academic study of Islamic law into this context, Johansen both establishes the importance of revisiting Schacht's much-maligned theses and also nuances Weber's project of comparative religious law. In particular, Johansen argues that Schacht and his intellectual forebears (save Goldziher) missed the importance of ikhtilaf in Islamic law, which Johansen sees as the key to understanding the relationship between law and revealed text. He writes: "The respect of normative pluralism (ikhtilaf) is possible only because the fiqh scholars conceive an ontological difference between the knowledge as revealed by God in Koranic texts, the prophet's praxis or the community's consensus on the one hand, and the knowledge which human beings acquire through their own reasoning" (pp. 65-66). Johansen continues to demonstrate that this ontological distinction helps explain the differences so many scholars have noticed between the "theory" and "practice" of Islamic law, since "the [fuqaha.sup.[contains]] recognize the contingency of all results of scholarly reasoning" (p. 66). While not the first to point out this fact, Johansen argues convincingly and clearly that this ontological difference allows the [fuqaha.sup.[contains]] to maintain a theoretical dependence on revealed sources while practically assuming the validity of human reason. Several articles in this volume reinforce this observation through the examination of specific details in Hanafite legal texts. For instance, in the penultimate chapter, Johansen demonstrates how legal texts that maintain a dependence on revealed sources were used primarily for teaching, while fatwas and sijillat demonstrate a willingness to depart from this framework in the courts (p. 463). Many other articles in this collection are worthy of further discussion. Of especial interest is the twentieth, "Essener Gesprache zum Thema Staat und Kirche," which includes a lecture on Muslims living in a non-Muslim state and twenty pages of questions and answers with German lawyers and academics. Here we are given insights on both the application of Islamic law and also the plight of Muslims in Germany today. The threads connecting these very different essays are easily traced by means of the book's extensive forty-three-page index. This volume's combination of narrow philological studies with more generally accessible essays should allow future scholars to reap the full benefits of Johansen's insights into the workings of Islamic law. COPYRIGHT 2001 American Oriental Society